Intertape Polymer Corp. v. NLRB , 801 F.3d 224 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1517
INTERTAPE POLYMER CORP.,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
No. 14-1553
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
INTERTAPE POLYMER CORP.,
Respondent.
On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board. (11-CA-077869;
11-CA-078827; 10-CA-080133; 11-RC-076776)
Argued: May 13, 2015 Decided: September 8, 2015
Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit
Judges.
Petition for review granted in part and denied in part; cross-
application for enforcement granted in part, denied in part and
remanded by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Wilkinson and Judge Floyd concurred.
Judge Wilkinson wrote a separate concurring opinion.
ARGUED: Reyburn Williams Lominack, III, FISHER & PHILLIPS LLP,
Columbia, South Carolina, for Petitioner/Cross-Respondent.
Nicole Lancia, NATIONAL LABOR RELATIONS BOARD, Washington, D.C.,
for Respondent/Cross-Petitioner. ON BRIEF: Michael D. Carrouth,
FISHER & PHILLIPS LLP, Columbia, South Carolina, for
Petitioner/Cross-Respondent. Richard F. Griffin, Jr., General
Counsel, Jennifer Abruzzo, Deputy General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben, Deputy
Associate General Counsel, Elizabeth A. Heaney, Supervisory
Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Respondent/Cross-Petitioner.
2
TRAXLER, Chief Judge:
Intertape Polymer Corporation (“Intertape”) petitions for
review of a National Labor Relations Board (“NLRB” or “Board”)
order concluding that Intertape committed three unfair labor
practices prior to and during the course of a union campaign, in
violation of Section 8(a)(1) of the National Labor Relations Act
(the “NLRA” or “Act”), 29 U.S.C. § 158(a)(1), and directing that
a second election be held based upon two of the three
violations. The Board cross-petitions for enforcement of its
order in full. For the reasons set forth below, we grant
Intertape’s petition for review in part and deny it in part,
grant the Board’s cross-petition for enforcement in part and
deny it in part, and remand for further proceedings.
I.
Intertape operates an adhesive tape manufacturing facility
in Columbia, South Carolina. In January 2012, the United Steel,
Paper & Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union, AFL-CIO-CLC
(“the Union”), launched a campaign to organize the facility’s
production and maintenance employees. The Union filed its
representation petition with the Board on March 16, 2012. On
April 26 and 27, a secret-ballot election was held. The Union
lost the election by a vote of 142 votes against and 97 votes
for the Union.
3
Both prior to and after the election, the Union filed with
the Board numerous unfair labor practice charges against
Intertape. The Union also filed objections to the completed
election, seeking to set it aside based upon unlawful conduct
allegedly occurring during the “critical period” from March 16,
the filing date of the petition, to April 27, the last day of
the election. J.A. 26. On July 26, 2012, the Board’s Acting
General Counsel issued a complaint against Intertape (the
“Complaint”).
Following a hearing, an administrative law judge (“ALJ”)
found that Intertape had violated Section 8(a)(1) of the Act by:
(1) interrogating employee Johnnie Thames regarding his views
about the union; (2) confiscating union literature from an
employees’ break room; (3) surveilling employees’ union
activities by leafleting at the plant gate at the same time that
union supporters were leafleting; and (4) threatening employees
that selecting the union as its collective-bargaining
representative would be futile. Based upon the latter three
violations, the ALJ also recommended that the election be
invalidated and that a second election be held. 1
1
Because the single incident of unlawful interrogation of
Thames occurred before the Union filed its representation
petition, it was not objectionable conduct occurring within the
critical period or a basis for setting aside the election.
4
On review, the Board agreed that Intertape had violated
Section 8(a)(1) by unlawfully interrogating Thames in February
2012; unlawfully confiscating union literature from the employee
break room in March 2012; and unlawfully surveilling union
activities in April 2012 by leafleting at the plant gate during
the periods of time that union supporters were leafleting. The
Board rejected the ALJ’s finding that Intertape had threatened
employees with futility. However, the Board set aside the
election results and ordered a new election, based solely upon
the confiscation and surveillance violations. 2
For the following reasons, we conclude that the Board
correctly determined that Intertape unlawfully interrogated
employee Thames and unlawfully confiscated union materials from
the employee break room, but that the Board erred in holding
that Intertape engaged in unlawful surveillance of union
activities.
II.
On review of orders issued by the NLRB, “we must affirm the
Board’s factual findings if they are supported by substantial
2
Board member Miscimarra dissented in part. He would have
dismissed the interrogation and surveillance allegations. He
would also have certified the election result because
Intertape’s alleged misconduct, even if it included the
purported surveillance, was “‘so minimal or isolated that it
[was] virtually impossible to conclude that the misconduct could
have affected the election results.’” J.A. 682 (quoting Long
Drug Stores Cal., 347 N.L.R.B. 500, 502 (2006)).
5
evidence on the record considered as a whole.” Medeco Sec.
Locks, Inc. v. NLRB, 142 F.3d 733, 742 (4th Cir. 1998) (internal
quotations marks omitted). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (internal quotation marks
omitted). “We must affirm the Board’s interpretations of the
NLRA if they are rational and consistent with the Act.” Id.
(internal quotation marks omitted).
Under Section 7 of the NLRA, employees are guaranteed “the
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.” 29 U.S.C. § 157.
Pursuant to Section 8(a)(1) of the Act, it is “an unfair
labor practice for an employer . . . to interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed in section 7” of the Act. 29 U.S.C. § 158(a)(1). An
employer’s actions violate Section 8(a)(1) if “the conduct in
question had a reasonable tendency in the totality of the
circumstances to intimidate.” NLRB v. Nueva Eng’g, Inc., 761
F.2d 961, 965 (4th Cir. 1985).
However, “[t]he prohibition set forth in § 8(a)(1) is
limited by [the protection granted by] § 8(c).” J.P. Stevens &
6
Co. v. NLRB, 638 F.2d 676, 684 (4th Cir. 1980). Section 8(c)
provides that:
[t]he expressing of any views, argument, or opinion,
or the dissemination thereof, whether in written,
printed, graphic, or visual form, shall not constitute
or be evidence of an unfair labor practice under any
of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of
benefit.
29 U.S.C. § 158(c).
III.
A. The Employee Interrogation Violation
We begin with the Board’s conclusion that Intertape
violated § 8(a)(1) by interrogating employee Johnnie Thames in
February 2012 about his union sentiments.
Although an employer’s “[q]uestioning or interrogation of
employees about their union sentiments is not per se unlawful”
under the Act, such questioning will rise to the level of a
Section 8(a)(1) violation if it is coercive in nature. Nueva
Eng’g, 761 F.2d at 965. “In making a determination of
coerciveness, [we] must consider a variety of factors including
the history of employer hostility to the union, the nature of
information sought, the identity of the questioner, and the
place and method of questioning.” Id. at 966. We have also
considered whether the questioner “explained the purpose of
[the] question” or provided “any assurances against
retaliation,” id., and whether the employee was reluctant to
7
discuss unionization, see Standard-Coosa-Thatcher Carpet Yarn
Div., Inc. v. NLRB, 691 F.2d 1133, 1137, 1139 (4th Cir. 1982).
In December of 2011, Thames was disciplined by his
immediate supervisor, Bill Williams, for arguing with Williams.
On February 10, 2012, Thames signed a union authorization card.
According to Thames, Williams approached him at his work station
approximately two or three weeks later and asked him what he
thought of the union. Williams also told Thames that “if you
don’t think it’s good then, that it can hurt you.” J.A. 234.
Thames walked away without responding. Williams denied asking
Thames about the union.
The ALJ credited Thames’ “detailed account” of the
conversation with Williams and his “strong recall of th[e]
discussion,” J.A. 685, over Williams’ “general denial” that any
such exchange occurred. J.A. 685-86. The ALJ also found that
Williams’ questioning of Thames, under the totality of the
circumstances, was sufficiently coercive to have made Thames
feel restrained from exercising his rights under Section 7.
The Board balanced the relevant factors and agreed. As
noted by the Board:
Williams directly asked Thames to reveal his view of
the Union. Although a low-level supervisor, Williams
was Thames’ direct supervisor, reasonably tending to
make the questioning that much more threatening.
Williams, moreover, offered no justification for his
questioning or assurances against reprisals. The
preexisting hostility between Williams and Thames and
8
Thames’ unwillingness to answer Williams further weigh
in favor of finding a violation. Last, we find that
Williams’ comment that “it can hurt you” would have
exacerbated the already coercive nature of his inquiry
into Thames’ opinion of the Union.
J.A. 679 (internal citations and footnotes omitted).
On appeal, we must accept the Board’s factual findings
based on credibility determinations “absent extraordinary
circumstances.” WXGI, Inc. v. NLRB, 243 F.3d 833, 842 (4th Cir.
2001) (internal quotation marks and alteration omitted).
“Exceptional circumstances include those instances when a
credibility determination is unreasonable, contradicts other
findings of fact, or is based on an inadequate reason or no
reason at all.” Id. (internal quotation marks omitted). No
such circumstances exist here. The ALJ observed the testimony
of Thames and Williams and explained why he credited Thames’
account of the conversation over Williams’ denial that it
occurred.
We hold that substantial evidence supports the Board’s
determination that Williams’ questioning of Thames about his
union sentiments, as described by Thames, was sufficiently
coercive or intimidating to render it an unfair labor practice
under the Act. Accordingly, we deny Intertape’s petition for
review and grant enforcement of this portion of the Board’s
order.
9
B. The Confiscation Violation
We next consider the Board’s conclusion that Intertape
violated Section 8(a)(1) by confiscating union flyers that a
union supporter had placed in the employee break room.
“Soliciting support for a union and distributing union
materials are among the core activities safeguarded by § 7.”
Consolidated Diesel Co. v. NLRB, 263 F.3d 345, 352 (4th Cir.
2001); see also Beth Isr. Hosp. v. NLRB, 437 U.S. 483, 491-92
(1978) (“[T]he right of employees to self-organize and bargain
collectively [under Section 7] necessarily encompasses the right
effectively to communicate with one another regarding self-
organization at the jobsite.”). “The workplace is uniquely
appropriate for such activities, so long as the activities are
conducted in nonwork areas during nonwork time, and in a non-
abusive manner.” Consolidated Diesel, 263 F.3d at 352 (internal
quotation marks and citations omitted).
Ordinarily, therefore, “an employer may not confiscate
union literature left for distribution to employees in nonwork
areas during nonwork time.” Id. at 354. On the other hand, an
employer’s enforcement of a valid housekeeping policy that
results in the incidental disposal of union literature will not
rise to the level of interference with the employee’s protected
Section 7 activities. Cf. Standard-Coosa-Thacker, 691 F.2d at
1141. In other words, an employer “has every right to keep its
10
workplace clean,” but that right will not prevail where
“substantial evidence supports the Board’s view that cleanliness
was not [the] issue.” Consolidated Diesel, 263 F.3d at 354.
Prior to and during the union campaign, Intertape
maintained a solicitation and distribution rule that prohibited
such activities during working time and in working areas.
Working time was defined as “the time employees are expected to
be working and does not include breaks, meals, before the shift
starts, and after the shift ends.” J.A. 33. Consequently, the
distribution of union flyers in the employee break room was not
prohibited.
The Complaint alleged that in March 2012, “including on
March 23 and 29,” Supervisor Bill Williams enforced Intertape’s
distribution rule “selectively and disparately, by prohibiting
union distributions in non-work areas, while permitting nonunion
distributions in non-work areas.” J.A. 33. At the hearing,
employee Faith Epps testified that she placed union flyers on
the counter in the employee break room, where such distributions
were permitted. Epps testified that on three occasions in
March, she observed Williams go into the break room immediately
after the employee shift break and remove the flyers. Epps also
testified that, prior to the union campaign, literature left in
the break room, such as newspapers and magazines, was left
untouched until at least the end of the work day. Epps also
11
testified that she could not recall seeing Intertape supervisors
cleaning up or removing literature from the break room until
after the union campaign began. Williams admitted discarding
the union literature along with the other “[n]ewspapers,
magazines, menus,” and trash that had been left in the break
room, but he testified that he only did so as a part of his
normal housekeeping duties. J.A. 528.
The ALJ found that Intertape, through Williams, had
unlawfully confiscated union literature from the break room.
The Board agreed, and additionally found that Intertape had
changed its policy regarding distributions in the break room “as
a reaction to and countermeasure against the union campaign.”
J.A. 679.
1.
As an initial premise, Intertape argues that the Board
erred in finding that it had violated Section 8(a)(1) by
confiscating union literature from the break room because the
violation was not closely related to the allegation set forth in
the Complaint, nor fully and fairly litigated at the hearing.
We disagree.
“It is well settled that the Board may find and remedy a
violation even in the absence of a specified allegation in the
complaint if the issue is closely connected to the subject
matter of the complaint and has been fully litigated.”
12
Pergament United Sales, Inc., 296 N.L.R.B. 333, 334 (1989); see
Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1361 (4th
Cir. 1969) (“All that is requisite in a valid complaint before
the Board is that there be a plain statement of the things
claimed to constitute an unfair labor practice that respondent
may be put on his defense. Such a complaint need state only the
manner by which the unfair labor practice has been or is being
committed, the absence of specifics being tolerated where there
has been no special showing of detriment.”) (internal quotation
marks and citation omitted); see also Pergament United Sales,
Inc. v. NLRB, 920 F.2d 130, 134 (2d Cir. 1990) (“In the context
of the Act, due process is satisfied when a complaint gives a
respondent fair notice of the acts alleged to constitute the
unfair labor practice and when the conduct implicated in the
alleged violation has been fully and fairly litigated.”).
Intertape complains because, prior to the hearing, it had
only been accused of disparately enforcing its distribution
policy, and not of changing its housekeeping policy. With
regard to the Pergament test, the Board held that:
Even if [Intertape] is correct that this is not the
precise theory of the complaint, which alleged that
the Respondent ‘enforced the rule . . . selectively
and disparately, by prohibiting union distributions in
non-work areas, while permitting nonunion
distributions in non-work areas,” the issue of a
change in the [Intertape’s] practice is closely
related to the subject matter of the complaint and has
been fully litigated.
13
J.A. 679 n.8. The Board additionally found it significant that
Intertape “does not argue that lack of notice prevented it from
introducing exculpatory evidence or that it would have altered
its litigation strategy had the allegation been pleaded in this
manner.” J.A. 679 n.8.
We find no error in the Board’s decision. The allegation
in the Complaint and the violation found by the Board both
present the core issue of whether Williams’ handling of the
union material left by Epps in the employee break room
interfered with the employees’ Section 7 rights. From the
inception of the Complaint, Intertape knew that the General
Counsel would take issue with the manner in which Williams
handled the union literature within the narrow time frame
specified, and Intertape had ample opportunity to prepare for
and rebut the claim that Williams was discarding union
literature in a manner that differed from Intertape’s pre-
campaign practices. Moreover, Intertape did not claim lack of
notice at the hearing as the testimony evolved, nor did it ask
for a continuance in order to present new or different testimony
regarding its housekeeping or distribution policies.
Accordingly, we hold that the Section 8(a)(1) confiscation
violation was closely related to the allegation set forth in the
complaint, and it was fully and fairly litigated at the hearing.
14
2.
Turning to the merits of Intertape’s challenge to the
confiscation violation, we hold that substantial evidence
supports the Board’s determination that Williams’ removal of the
union literature from the break room was an unfair trade
practice under the Act.
Although Intertape admits that Williams removed union
literature from the break room, it asserts that the General
Counsel failed to prove that Intertape changed its distribution
or housekeeping policies during the critical period or that it
did so in response to union activity. We are unpersuaded.
As noted above, Epps testified that literature left by
employees in the break room prior to the union campaign was
routinely left undisturbed until the end of the day, and that
the supervisors were not known to engage in prompt housekeeping
activities after each employee break. Her testimony was also
corroborated by that of a second employee, John Jordan, who
testified that he was told by another supervisor that he could
not distribute union literature in the break room.
Because substantial evidence supports the Board’s
conclusion that Intertape unlawfully confiscated union
literature in violation of the Act, we deny Intertape’s petition
for review and grant enforcement of this portion of the Board’s
order as well.
15
C. The Surveillance Violation
Finally, we turn to the Board’s conclusion that Intertape
engaged in excessive or coercive surveillance when it handed out
leaflets at the plant gate to arriving employees at the same
time that union supporters were handing out leaflets. For the
reasons set forth below, we hold that the Board’s decision is
not supported by substantial evidence and is contrary to law.
1.
The facts pertaining to this violation are largely
undisputed. On April 24, two days before the secret-ballot
election began, Intertape supervisors stood near the turnstiles
at the plant entrance and distributed a “Thank You” flyer to
arriving employees from approximately 6:30 a.m. to 7:00 a.m. 3 No
union supporters were leafleting at the time.
3 The flyer was signed by plant supervisors and contained
the following message:
Soon, you will be able to vote on whether you want to
be represented by a union or not. Although we do not
have a vote, we have tried to give you the information
you need to make a good decision. We hope you will
base your decision on the facts and what you truly
believe will put this plant in the best position to
move forward.
While we certainly hope you believe a union is
unnecessary and you will vote no, we need this matter
behind us on Friday. We have all learned a lot about
ourselves and our plant through this union campaign.
Regardless of your position on this matter, we all
(Continued)
16
That afternoon, Intertape supervisors returned to the plant
gate and distributed the flyers from approximately 6:30 p.m. to
7:00 p.m. After the supervisors arrived and began distributing
the flyers, union supporters joined them at the gate and began
simultaneously distributing union literature. The union
supporters positioned themselves approximately five feet on the
other side of the turnstiles from the supervisors.
On the morning of April 25, the supervisors returned to the
turnstiles and again distributed the flyers from approximately
6:30 a.m. to 7:00 a.m., unaccompanied by the union supporters.
That evening, both the supervisors and the employees distributed
their respective flyers from opposite sides of the turnstiles,
but on this occasion the union supporters arrived first.
There is no evidence that the supervisors knew that the
union supporters intended to hand out leaflets at the gate on
the two afternoons in question, or that they were otherwise
present at the gate for the purpose of spying on employees.
Although union supporters had briefly leafleted at the gate on
March 22 and 23, shortly after the representation petition was
filed, they had not done so during the intervening month-long
need to put as much effort into working together on
our plant as we have in addressing the union election.
J.A. 640. The content of the flyer is not alleged to be
coercive or otherwise violative of the Act.
17
campaign. Nor was there evidence that the union supporters had
planned ahead of time to leaflet on the afternoons of April 24
and 25. During the periods of simultaneous leafleting, the
supervisors did not say anything, beyond pleasantries, to the
union supporters or to the arriving employees. They did not
take pictures or notes of the employees as they arrived, nor did
they otherwise engage in threatening or intimidating behavior
towards the union supporters or the arriving employees.
The Board, however, held that Intertape engaged in
“unlawful surveillance” of the union activities because the
supervisors’ leafleting at the gate was “‘out of the ordinary,’”
insofar as there was no evidence that Intertape had communicated
with its employees in this manner “prior to the campaign,” and
because the supervisors could “see” the employees during the
periods of simultaneous leafleting. J.A. 679 (emphasis added). 4
4 Specifically, the Board found that the supervisors’
leafleting became coercive surveillance merely because:
The presence of supervisors at the plant gate where
employees arrived and left was itself unusual.
Further, management officials typically communicated
with employees in meetings, and there was no evidence
that, prior to the campaign, it had leafleted its own
employees. As the [ALJ] found, the Respondent’s
supervisors could see not only the employees
distributing leaflets, but also which employees
accepted or rejected the leaflets, and any
interactions between them.
J.A. 679 (citations omitted).
18
The Board “attribute[d] no relevance to which group of
leafleters arrived first,” because “the employer’s [leafleting]
activity [was] out of the ordinary.” J.A. 679 n.9. As to
Intertape’s argument that “it was simply exercising its Section
8(c) right to communicate with its employees,” the Board
summarily rejected it as well, explaining that “such
communication is [nonetheless] unlawful if it includes out-of-
the-ordinary conduct that places employees’ union activities
under surveillance.” J.A. 679-80.
2.
It has long been established that an employer’s act of
observing its employees on company property during union
activities, even when done in close proximity to its employees,
is not a per se violation of the Act. On the contrary, “union
representatives and employees who choose to engage in their
union activities at the employer’s premises should have no cause
to complain that management observes them.” Belcher Towing Co.
v. NLRB, 726 F.2d 705, 709 (11th Cir. 1984) (per curiam)
(internal quotation marks omitted); Emenee Accessories, Inc.,
267 N.L.R.B. 1344, 1344, 1349 (1983) (finding no violation where
supervisor “stationed himself at the entrance to the building
for the purpose of observing the Union’s efforts” and “observed
the union organizers conversing with employees who were
reporting for work”); Milco, Inc., 159 N.L.R.B. 812, 814 (1966)
19
(finding no violation where management representatives watched
union organizers who were handing out leaflets and talking to
employees as they were leaving the plant; the employer had a
legitimate reason for being there and there was “no evidence
that any management representatives made notes or otherwise
recorded what they saw,” notwithstanding that they could see the
interactions between the employees and the union organizers).
The exception to this general rule arises when the
employer’s observation of union activities can be reasonably
construed as excessive or coercive surveillance, such that it
“unreasonably chill[s] the exercise of the[] employees’ Section
7 rights.” NLRB v. Southern Md. Hosp. Ctr., 916 F.3d 932, 938
(4th Cir. 1990) (per curiam) (noting that “the Board has on
several occasions found that employers unreasonably chilled the
exercise of their employees’ Section 7 rights through excessive
surveillance”) (emphasis added); cf. NLRB v. Arrow-Hart, Inc.,
203 N.L.R.B. 403, 403 (1973) (noting that an employer’s act of
“coercively surveilling – that is, spying upon – its employees’
activities” would be a violation of the Act). As stated
previously, the employer’s observation must have a “reasonable
tendency in the totality of the circumstances to intimidate” the
employees. Nueva Eng’g., 761 F.2d at 965.
This is because, “[w]hen an employer watches . . .
employees because he believes they are engaged in union
20
activities, the employees may reasonably fear that participation
in union activities will result in their identification by the
employer as union supporters.” Id. at 967. The “employee,
possibly anticipating retaliation against identified supporters,
may thereafter feel reluctant to participate in union
activities.” Id.; see also NLRB v. Grand Canyon Mining Co., 116
F.3d 1039, 1045 (4th Cir. 1997) (“[A]n employer violates section
8(a)(1) of the Act if it gives employees the impression that it
is conducting surveillance of their union activities.”); J.P.
Stevens & Co., 638 F.2d at 683 (“It is an unfair labor practice
for an employer to create in the minds of employees an
impression that he is closely observing union organizational
activity.”). Such excessive or coercive “surveillance becomes
illegal because it indicates an employer’s opposition to
unionization, and the furtive nature of the snooping tends to
demonstrate spectacularly the state of the employer’s anxiety.”
Belcher Towing, 726 F.2d at 708 n.2. “From this the law reasons
that when the employer either engages in surveillance or takes
steps leading his employees to think it is going on, they are
under the threat of economic coercion.” Id.
Ultimately, “[t]he test for determining whether an employer
engages in unlawful surveillance, or unlawfully creates the
impression of surveillance, is an objective one and involves the
determination of whether the employer’s conduct, under the
21
[totality of the] circumstances, was such as would tend to
interfere with, restrain, or coerce employees in the exercise of
their rights guaranteed under Section 7 of the Act.” Southern
Md., 916 F.2d at 938 (internal quotation marks omitted); cf.
Nueva Eng’g., 761 F.2d at 965 (The employer’s conduct must have
a “reasonable tendency in the totality of the circumstances to
intimidate” the employees.).
For example, we consider “the duration of the observation,
the employer’s distance from its employees while observing them,
and whether the employer engaged in other coercive behavior
during its observation.” Aladdin Gaming, LLC, 345 N.L.R.B. 585,
586 (2005). But we must also consider whether the employer had
a legitimate reason for observing the activities or for
otherwise being present at the place where the alleged
surveillance has occurred. See, e.g., Nueva Eng’g., 761 F.2d at
967 (upholding violation where two supervisors went to an off-
site location “for the purpose of surveilling a scheduled union
meeting” and, “when no meeting occurred, the supervisors
followed three employees to an employee’s home”); Sprain Brook
Manor Nursing Home, LLC, 351 N.L.R.B. 1190, 1191 (2007) (finding
unlawful surveillance where nursing home administrator went to
facility on her day off “solely for the purpose of observing
union activity” and stood in the doorway closest to where the
union organizer was meeting with the employees so as to be able
22
to see the employees and be seen by them); PartyLite Worldwide,
Inc., 344 N.L.R.B. 1342, 1342 (2005) (finding unlawful
surveillance of union handbilling activities because, “on three
separate occasions shortly before the election, no less than
eight high-ranking managers and supervisors stood at entrances
to the employee parking lot watching the [union] give literature
to employees as they entered and exited the parking lot during
shift changes,” “the presence of managers and supervisors at the
entrances to the parking lot was surprising and an unusual
occurrence,” and “[t]he employer established no legitimate
explanation for why any of its managers and supervisors were
stationed in the parking lot during the [Union’s] handbilling
activities”); S.J.P.R., Inc., 306 N.L.R.B. 172, 172 (1992)
(finding that the employer “engaged in unlawful surveillance by
posting one or two security guards near the employee entrance
and another security guard with binoculars in an upstairs hotel
room in order to observe employees and union agents soliciting
union authorization card signatures across the street from the
hotel,” because it “constituted more than ordinary or casual
observation of public union activity” and “[t]here [was] no
evidence that the [employer’s] conduct was based on safety or
property concerns”); Eddyleon Chocolate Co., 301 N.L.R.B. 887,
888 (1991) (finding violation where supervisor “drove his car to
within 15 feet of” the union representative, “watched employees
23
as [the union representative] handed them literature . . . near
the entrance to the [employer’s] parking lot,” and “spoke into
his car telephone” until the union representative left); Arrow
Auto. Indus., 258 N.L.R.B. 860, 860-61 (1981) (finding unlawful
surveillance of union handbilling activities where “[s]oon after
the handbilling began on 2 of the 3 days . . . in question, 11
of the [employer’s] supervisors lined up in varying numbers near
each of the three gates, observing the employees as they drove
past the union handbillers,” “the presence of the supervisors
was highly unusual,” “the supervisors’ presence was deliberately
calculated to show and demonstrate observation in numbers and
force,” and the employer failed to demonstrate a legitimate
reason for being there) (internal quotation marks, alterations,
and footnotes omitted).
3.
This case presents an additional and somewhat unusual
circumstance for consideration as well because, unlike in the
more typical unlawful-surveillance situation, Intertape’s
legitimate explanation for being at the gate was to exercise its
First Amendment and Section 8(c) right to leaflet its employees
during a union campaign in a nonthreatening manner. There was
no union activity to observe when they began this protected
speech. And when the union supporters joined them in this
24
protected activity, the supervisors and the union supporters
engaged in simultaneous but noncoercive speech.
As noted earlier, Section 8(c) of the Act limits the
prohibition set forth in § 8(a)(1). See J.P. Stevens, 638 F.2d
at 684. “Counterbalancing the [Section 8(a)] prohibition
against” an employer interfering with, restraining, or coercing
employees who are engaged in protected Section 7 activities “is
[the] employer’s strong interest in preserving its right to free
speech,” which “Congress expressly recognized . . . by enacting”
Section 8(c) of the Act. American Pine Lodge Nursing & Rehab.
Ctr. v. NLRB, 164 F.3d 867, 875 (4th Cir. 1999).
Specifically, Section 8(c) “protects speech by both unions
and employers,” Chamber of Commerce v. Brown, 554 U.S. 60, 67
(2008), by providing that such speech “shall not constitute or
be evidence of an unfair labor practice under any of the
provisions of the Act,” so long as “such expression contains no
threat of reprisal or force or promise of benefit,” 29 U.S.C. §
158(c) (emphasis added). Section 8(c) “manifest[s] a
‘congressional intent to encourage free debate on issues
dividing labor and management.’” Chamber of Commerce, 554 U.S.
at 67; see also NLRB v. Gissel Packing Co., 395 U.S. 575, 617
(1969). “[P]ermitting the fullest freedom of expression by each
party nurtures a healthy and stable bargaining process.”
25
American Pine, 164 F.3d at 875 (internal quotation marks
omitted).
Given the competing but protected interests at play,
therefore, a “balance [must] be struck between an employer’s
free speech rights as protected by subsection 8(c) and
employees’ rights to associate freely as embodied in section 7,
subsection 8(a)(1), and the proviso to subsection 8(c).”
Procter & Gamble Mfg. Co. v. NLRB, 658 F.2d 968, 983 (4th Cir.
1981); see also Gissel Packing, 395 U.S. at 617. The protection
is not “a cloak to hide obviously intimidating conduct,” NLRB v.
Williams, 195 F.2d 669, 672 (4th Cir. 1952), but the fact that
the employer is engaged in such protected speech is a relevant
factor to be considered.
In Arrow-Hart, the Board addressed this interplay between
Section 8(a)(1)’s prohibition against coercive or excessive
surveillance and Section 8(c)’s protection of an employer’s
speech. There, the supervisors’ leafleting activity inside the
glass door of the plant likewise placed them in a position where
they could see union supporters who were engaged in the very
same protected activity outside the glass door. They were also
acting in a manner “out of the ordinary,” insofar as they were
leafleting their employees near the entrance as part of their
campaign against unionization. Nevertheless, the Board found no
unfair labor practice because there was no evidence that the
26
supervisors were engaged in coercive surveillance during this
counter-leafleting activity. As the Board correctly recognized,
An employer has the right to distribute election
campaign material of its own. It has a right to
express its opinion of union literature, even calling
it trash – in writing as well as orally. And, it has
a right to do these things at the very moment the
union is trying to persuade the employees to a
contrary view – certainly anywhere on its premises, in
the inner reaches of the plant or at the front door,
even if the door is made of looking-through glass.
What the General Counsel’s argument really amounts to
here is that the Respondent may not do what it legally
is permitted to do.
203 N.L.R.B. at 406; see also Aladdin Gaming, 345 N.L.R.B. at
585-86 (finding no violation where supervisors interrupted union
supporters who were soliciting employees in the employer’s
cafeteria to give “management’s perspective on unionization” as
it had a right to do under Section 8(c)).
4.
Here, in contrast, the Board found unlawful surveillance by
the Intertape supervisors merely because the supervisors’
leafleting was “out-of-the-ordinary” -- insofar as they had
never done it prior to the union campaign -- and because the
supervisors could “see” the employees when the union supporters
were simultaneously leafleting. J.A. 679. Moreover, the Board
declined to give any countervailing consideration to the fact
that Intertape was engaged in protected Section 8(c) activity at
the time, or to the fact that Intertape was engaged in this
27
activity well before the union supporters arrived to counter-
leaflet. This was error.
Plainly, to transform Intertape’s protected Section 8(c)
activity into the unlawfully coercive surveillance prohibited by
Section 8(a)(1), the Act requires more than mere “out-of-the-
ordinary” conduct in an area where employees can be seen; the
Act requires conduct that could have reasonably been construed
in the totality of the circumstances as coercive, intimidating,
or threatening in nature. As our sister circuit has observed,
“[i]n recent cases involving employer surveillance of union
activities, the Board has seemed to ignore this critical
coercion element.” Greater Omaha Packing Co. v. NLRB, 790 F.3d
816, 823 (8th Cir. 2015). The same holds true here.
First, the supervisors’ ability to observe employees as
they interacted with union supporters on company property during
the brief periods of simultaneous leafleting is insufficient to
render the supervisors’ leafleting coercive, intimidating, or
threatening in nature. See Southern Md., 916 F.2d at 938;
Belcher Towing, 726 F.2d at 709. There is no evidence that
Intertape’s supervisors engaged in “excessive surveillance” of
the union supporters’ leafleting activity during the periods of
simultaneous leafleting or, for that matter, that they were
“watching” them at all. Nor is there any indication that they
28
continued to leaflet on the two afternoons in question in order
to spy on or snoop into the employees’ union activities.
Second, the Board placed too much significance upon the
fact that Intertape had never leafleted its employees at the
plant gate prior to the union campaign. Although an employer’s
act of observing employees in a way that is “out of the
ordinary” can provide evidence that incidental observation, in
the totality of the circumstances, should instead be construed
as coercive or intimidating surveillance or spying, not every
“out of the ordinary” activity by an employer can be deemed, a
fortiori, coercive or threatening in nature. See, e.g.,
Southern Md., 916 F.2d at 939 (“It is firmly established that
management officials may observe public union activity,
particularly where such activity occurs on company premises,
without violating § 8(a)(1) of the Act, unless such officials do
something ‘out of the ordinary.’”); Aladdin Gaming, 345 N.L.R.B.
at 585-86 (while a “supervisor’s routine observation of
employees engaged in open Section 7 activity on company property
does not constitute unlawful surveillance,” the exception arises
when “an employer . . . surveils employees engaged in Section 7
activity by observing them in a way that is ‘out of the
ordinary’ and thereby coercive”). On the contrary, the cases
have always considered the employer’s reason for being in a
particular place at a particular time, even if it is unusual or
29
out of the ordinary, and the Act’s requirement that there be
indicia of coercion or intimidation requires no less. See
Arrow-Hart, 203 N.L.R.B. at 406 (“If, as they approached the
front door to reach some of the employees, the supervisors also
. . . saw their counterparts giving out their election material,
it was something that could hardly be avoided in any event. It
would be childish to call this spying, for if there is one thing
everybody knew all the time it is that the [union] was
distributing outside and the Company inside.”).
Here, Intertape was arguably not engaged in “out-of-the-
ordinary” behavior at all, because by the time the union
supporters arrived to counter-leaflet alongside them, the
supervisors had already leafleted at the gate on one occasion
and were into their second session. The fact that they had
never leafleted employees prior to the union campaign also adds
nothing to the coerciveness inquiry. The union campaign itself
was “out of the ordinary,” in that the Union was attempting to
unionize Intertape’s workforce. That Intertape responded to
this out-of-the-ordinary event by engaging in leafleting for the
first time does not make its actions suspect. Rather, in light
of the union campaign, the employer’s decision to present its
views through its own gate-side leafleting seems entirely
ordinary.
30
Nevertheless, even if we were to consider the supervisors’
presence at the gate to be “out of the ordinary,” it is not the
type of “out-of-the-ordinary” observation or conduct that the
Board or the courts have reasonably viewed as being coercive or
intimidating in nature. Nor would the language of the Act allow
for such an over-inclusive definition.
As in Arrow-Hart, “[w]hat the General Counsel’s argument
really amounts to here is that the [employer] may not do what it
legally is permitted to do” under Section 8(c). Id. Indeed, by
accepting this argument, the Board is effectively requiring
employers to cease engaging in protected conduct whenever union
supporters choose to engage in identical, protected conduct
alongside them. The Act, however, explicitly protects the
employer’s right to express its viewpoint in this manner, and
that right cannot be extinguished absent a “threat of reprisal
or force or promise of benefit,” 29 U.S.C. § 158(c), which is
nonexistent here. Similarly, Intertape’s mere act of
simultaneous leafleting, even if such leafleting is construed as
“out of the ordinary,” is plainly insufficient to establish the
intimidation or coercion required under Section 8(a)(1).
Here, the Intertape supervisors did not go to a place where
union supporters or other employees were engaged in union
activities for the purpose of “spying upon” them, either from
afar or up close. They went to a gate on company property,
31
where there were no union supporters and no employees engaged in
union activity, in order to exercise their First Amendment and
statutorily protected right to communicate their views about the
upcoming election to their employees. During the two short
periods of simultaneous leafleting, the Intertape supervisors
did not speak to the employees or the union leafleters, beyond
exchanging pleasantries. There is no evidence that they stared
or glared at the employees or the leafleters. There is no
evidence that they attempted to force their leaflets upon the
employees, or that they attempted to persuade employees or
signal to them that they should not accept the union leaflet in
addition to or in lieu of the employer’s leaflet. They did not
take photographs or otherwise record what was transpiring during
the brief periods of simultaneous leafleting. And there is no
evidence that they otherwise engaged in behavior that could
reasonably have been construed as coercive, intimidating, or
threatening.
Under the totality of the circumstances -- which includes
the absence of any threatening expression that could have
extinguished Intertape’s Section 8(c) right to leaflet at the
gate -- Intertape’s legitimate reason to be there did not vanish
when the union supporters arrived to counter-leaflet, nor were
the Intertape supervisors required to retreat when the union
supporters did arrive. The Intertape supervisors were required
32
to conduct their leafleting activity in a noncoercive and
nonthreatening manner, and there is no indication that they did
not do so.
For the foregoing reasons, we hold that substantial
evidence does not support the Board’s conclusion that Intertape
engaged in unlawful surveillance when it leafleted at the gate
on the afternoon of April 24, when the Union supporters chose to
leaflet alongside them, or on the afternoon of April 25, when
Intertape chose to continue its leafleting activities in advance
of the election. Accordingly, we decline to enforce this
portion of the Board’s order.
IV.
To conclude, we grant Intertape’s petition for review in
part and deny it in part, and we grant the Board’s cross-
petition for enforcement in part and deny it in part.
Specifically, we enforce that portion of the Board’s order
concluding that Intertape engaged in unlawful interrogation of
an employee in February of 2012, as well as that portion of the
Board’s order concluding that Intertape unlawfully confiscated
union flyers in March of 2012. However, we deny enforcement of
the Board’s order concluding that Intertape engaged in unlawful
surveillance of union activity in April of 2012, and remand to
the Board so that it can modify its Order in accordance with our
decision. Because our decision eliminates one of the two bases
33
upon which the Board set aside the election, see supra at 5 &
n.2, the Board will also find it necessary to reconsider its
decision to direct a second election.
PETITION FOR REVIEW GRANTED IN PART AND DENIED IN PART;
ENFORCEMENT GRANTED IN PART AND DENIED IN PART; REMANDED
34
WILKINSON, Circuit Judge, concurring:
I concur fully in Chief Judge Traxler’s fine opinion. I
agree with him that substantial evidence did support the Board’s
interrogation and confiscation findings, but that the part of
the Board’s order concluding that Intertape engaged in unlawful
surveillance of union activity improperly compromised
Intertape’s right to tell employees its side of the story.
Left to my own devices, I would hold that, even if the
unfair labor practices alleged by the General Counsel had
occurred, the Board would have exceeded its remedial discretion
by ordering a new election. This is all the more so where the
Board’s most critical finding supporting its direction of a new
election has been overturned. Whatever remedial measures may be
warranted, a new election is not among them. Intertape’s margins
in the first election were huge, and its infractions were
comparatively minor. The Board’s decision to order a new
election in these circumstances failed to respect the choice
Intertape’s employees made.
I acknowledge, however, that circuit precedent does not
leave me to my own devices. See, e.g., NLRB v. Low Kit Min. Co.,
3 F.3d 720, 729-30 (4th Cir. 1993); Daniel Const. Co. v. NLRB,
341 F.2d 805, 809-10 (4th Cir. 1965). As a result, I join the
court’s opinion, including the terms of the remand order, which
provides simply that the Board will “find it necessary to
35
reconsider its decision to direct a second election.” Maj. Op.
at 33. I suggest, however, that the authority of circuit courts
to review a Board’s do-over election order at this stage of the
proceedings warrants additional reflection and reexamination,
bearing foremost in mind the need to restore a sense of balance
between agencies and courts.
I.
Agencies do many good and necessary things. Through their
efforts, our environment is cleaner, our food safer, our economy
steadier, and our labor-management relations smoother. Behind
these blessings, however, is a growing bureaucracy, a “vast
power [that] touches almost every aspect of daily life.” City of
Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1878 (2013) (Roberts,
C.J., dissenting). This power draws its strength from its
frequent combination of the legislative, executive, and judicial
functions -- a combination that “heighten[s] the potential for
abuses that the traditional system was designed to check.” Cass
R. Sunstein, Constitutionalism After the New Deal, 101 Harv. L.
Rev. 421, 447 (1987); see also The Federalist No. 47 (James
Madison) (“The accumulation of all powers . . . in the same
hands . . . may justly be pronounced the very definition of
tyranny.”).
Unfortunately, this potential for abuse meets little
resistance from ordinary democratic processes. The difficulty of
36
passing a bill in both houses and surviving a potential
presidential veto “limits [] Congress’s ability to impose” its
will on the administrative state. Elena Kagan, Presidential
Administration, 114 Harv. L. Rev. 2245, 2259 (2001).
Presidential control offers no sure hope either, because “no
President (or his executive office staff) could . . . supervise
so broad a swath of regulatory activity.” Id. at 2250; cf. City
of Arlington, Tex., 133 S. Ct. at 1878 (Roberts, C.J.,
dissenting) (“President Truman colorfully described his power
over the administrative state by complaining, ’I thought I was
the President, but when it comes to these bureaucrats, I can’t
do a damn thing.’”). Even if the President could fully supervise
the executive branch, he would face little pressure from voters
to do so, for “the general public is often unaware of political
decisions being made at the agency level.” Donald S. Dobkin, The
Rise of the Administrative State: A Prescription for
Lawlessness, 17 Kan. J. L. & Pub. Pol’y 362, 367 (2008).
In the early days of administrative law, organic statutes
giving agencies capacious power to effectuate broad policies
often complicated judicial review. The National Labor Relations
Act (NLRA), for example, frames the Board’s remedial authority
in broad terms. Section 10(a) “empower[s]” the Board “to prevent
any person from engaging in any unfair labor practice.” 29
U.S.C. § 160(a). Section 10(c) further “authorizes the Board to
37
require persons found engaged or engaging in unfair labor
practices ‘to take such affirmative action . . . as will
effectuate the policies of this [subchapter].’” Va. Elec. &
Power Co. v. NLRB, 319 U.S. 533, 539 (1943) (quoting 29 U.S.C. §
160(c)).
Fortunately, however, the American people eventually added
an important condition to the administrative bargain: the
Administrative Procedure Act (APA). “[F]ramed against a
background of rapid expansion of the administrative process,”
the APA was meant to act as “a check upon administrators whose
zeal might otherwise have carried them to excesses not
contemplated in legislation creating their offices.” Perez v.
Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1211 (2015) (Scalia, J.,
concurring) (quoting United States v. Morton Salt Co., 338 U.S.
632, 644 (1950)); see also 92 Cong. Rec. 2149 (1946) (statement
of Sen. McCarran) (describing the APA as a “bill of rights for
the hundreds of thousands of Americans whose affairs are
controlled or regulated . . . by agencies of the Federal
Government”). The APA thus proscribes administrative action that
is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706.
II.
Before examining the Board’s decision to direct a second
election in this case, however, I consider the court’s power to
38
review that decision. A few years after the passage of the NLRA,
the Supreme Court held that the Act “indicates a purpose to
limit the review afforded [under the NLRA’s judicial-review
provisions in Sections 10(e) and 10(f)] to orders of the Board
prohibiting unfair labor practices.” Am. Fed’n of Labor v. NLRB,
308 U.S. 401, 409 (1940). The Court concluded that, because the
Board’s decision to direct an election is “but a part of the
representation proceeding,” that decision is not subject to
judicial review under Section 10(f). NLRB v. Int’l Brotherhood
of Elec. Workers, 308 U.S. 413, 414 (1940). By withholding
jurisdiction from the courts of appeals “until the Board issues
an order and requires the employer to do something predicated
upon the result of an election,” NLRB v. Falk Corp., 308 U.S.
453, 459 (1940), the Court followed legislators’ perceived
intent: to allow employees to vote on union membership before
facing possible judicial interference. Am. Fed’n of Labor, 308
U.S. at 409-11 & n. 2. It subsequently reiterated that Congress
intended to avoid “dragging [the case] on through the courts”
before giving employee democracy its chance. Boire v. Greyhound
Corp., 376 U.S. 473, 477-79 (1964).
Decisions of the courts of appeals, including some in the
Fourth Circuit, have expanded this Supreme Court precedent to
mean that, even when a first election has already been held,
“the Board’s direction of a new election is not a final order
39
reviewable under either section 10(e) or section 10(f) of the
NLRA.” See, e.g., Adtranz ABB Daimler-Benz Transp., N.A., Inc.
v. NLRB, 253 F.3d 19, 22, 24-25 (D.C. Cir. 2001) (refusing to
consider petitioner’s challenge to the Board’s second-election
order even though the Board’s unfair labor practice
determinations were “utterly without merit”); Low Kit Min. Co.,
3 F.3d at 729-30 (holding a second-election order “not final
under the Act and . . . not ripe for judicial review”).
According to this view, then, a company may obtain judicial
review of a Board’s second-election order only by navigating an
unusually circuitous course. First, the company must submit to a
second election. Next, assuming the union wins that election,
the company must refuse to bargain with the union. This refusal
will then give the Board the opportunity to find that the
company has engaged in an unfair labor practice. And this
determination, at long last, will provide the predicate for
judicial review of the Board’s order. On appeal, the company may
defend its refusal to bargain by claiming that the second
election was unnecessary. See Heartland Human Servs. v. NLRB,
746 F.3d 802, 805-06 (7th Cir. 2014).
The courts of appeals, however, should have jurisdiction to
review a Board’s direction of a second election when that
direction is but the remedial portion of the Board’s final
order. I say this for two reasons. The first involves the
40
earlier Supreme Court decisions. The second involves the text of
the NLRA itself.
First, none of the earlier Supreme Court cases dealt with
the particular question of an election already conducted and a
Board order addressing the conduct of that election and any
associated remedies. See Am. Fed’n of Labor, 308 U.S. at 402-03;
Int’l Brotherhood of Elec. Workers, 308 U.S. at 414; Falk, 308
U.S. at 459. The legislative concern motivating the Court in
these cases –- that jurisdiction over election-related orders
would allow courts to interfere with the Board’s certification
proceedings before employees even have a shot at voting –-
applies with significantly less force after a first election has
already been held.
Indeed, a recent Fifth Circuit case declined to extend
those decisions to the decertification election context. NLRB v.
Arkema, 710 F.3d 308, 319 (5th Cir. 2013) (denying “enforcement
of the order setting aside the election and requiring a new
one”); see also Graham Architectural Prod. Corp. v. NLRB, 697
F.2d 534, 545-46 (3d Cir. 1983) (Garth, J., dissenting) (arguing
for judicial review of second-election orders in the
certification context). And even in decisions declining to
review the Board’s second-election order, courts have noted,
almost apologetically, that their decision not to do so flies in
the face of judicial efficiency. See, e.g., Graham Architectural
41
Prod. Corp., 697 F.2d at 543 (“[C]onsiderations of efficiency
and judicial economy seem to suggest that we review the election
order as well.”).
Secondly, the text of the NLRA itself plainly does not bar
judicial review in these cases. The text provides simply that
review lies where a “final order” of the Board has issued in
regard to any unfair labor practice. 29 U.S.C. § 160(f). The
statute also speaks remedially. We are empowered to rule on any
final order granting in whole or in part “the relief sought.”
Id. Here, a final order of the Board has indeed issued. The
Board found that Intertape’s pre-election activity involved
unfair labor practices under Section 8(a), and based on this
determination, the Board ordered a new election. But the
remedial components of the Board’s order are not something
separate and apart from its findings as to liability. Here, the
Board’s Order notes that “the election held on April 26 and 27,
2012 . . . is set aside,” and then proceeds on the very same
page recounting the alleged unfair labor practices to direct a
second election and set forth the conditions for holding it.
J.A. 681; Intertape Polymer Corp., 360 NLRB No. 114, 2014 WL
2192498, at *4 (May 23, 2014). The date of the order and the
signatures of those Board members ascribing to it follow right
on the heels of the above. J.A. 681. The Board ostensibly
“sever[s]” its direction of a new election from the rest of its
42
disposition. J.A. 681. But this boilerplate severance sentence
is hollow formalism, and the Board’s own Statement of
Jurisdiction commendably recognizes as much. It refers to its
“Decision, Order, and Direction of Second Election issued May
23, 2014” as a “final order with respect to all parties.” Resp.
Br. 1-2.
This is one, single final order. Why artificially segment
it? Nothing in the text of the NLRA permits us to salami-slice
the Board’s order, and the most basic factors of efficiency and
economy suggest that we review the underlying order -- both the
unfair labor practices and the remedial prescriptions -- in its
entirety.
This is especially the case where, as here, we have
reviewed and found wanting the most critical finding underlying
the Board’s direction of a new election. With the underpinning
of the Board’s order thus removed, it is appropriate to deal
with the matter in its entirety. I do not think the sparse
language of the NLRA forbids judicial review; quite the
contrary. By simply referring to a final order as a unitary
whole it suggests that review would be permitted. Indeed, the
statute plainly empowers courts of appeals to “enter a decree
enforcing, modifying and enforcing as so modified, or setting
aside in whole or in part the order of the Board.” 29 U.S.C. §
160 (e), (f).
43
One overarching point remains. Surrendering judicial review
of a Board’s do-over election order severs the historically
interwoven concepts of violation and remedy. It likewise severs
labor law from a foundational principle of administrative law:
arbitrary and capricious review under the APA. The arbitrary and
capricious standard defines as much as anything the relationship
between courts and agencies in our country, and to relinquish or
dilute that standard tilts the balance too emphatically in favor
of the administrative state and against the check and balance of
judicial review. The Board’s new election order was a remedial
step intended to cure Intertape’s violations of the NLRA. But a
remedial order constitutes an agency action that is no less (and
often more) susceptible to agency caprice than is an agency
finding of liability.
”The Supreme Court has always assumed that Congress
intended the judicial review provisions of both [the APA and the
NLRA] to be equivalent,” and it “has read the NLRA as if it
included an arbitrary and capricious test.” Diamond Walnut
Growers, Inc. v. NLRB, 113 F.3d 1259, 1266 (D.C. Cir. 1997) (en
banc) (citing Universal Camera v. NLRB, 340 U.S. 474, 487
(1951); Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301,
309–10 (1974)). One need not ascribe independent jurisdictional
force to the APA in order to note that the guiding principles of
administrative law –- arbitrary and capricious review under the
44
APA –- should provide the overall perspective from which courts
assess their authority. “[I]t is, of course, the most
rudimentary rule of statutory construction . . . that courts do
not interpret statutes in isolation, but in the context of the
corpus juris of which they are a part, including later-enacted
statutes.” Branch v. Smith, 538 U.S. 254, 281 (2003). The
Supreme Court’s 1940 cases, which some later courts wrongly
extended, were decided without the benefit of the APA. Given
that those 1940 decisions are likewise distinguishable from
cases involving re-run (not initial) elections, it needlessly
eviscerates the purpose of administrative procedure under the
APA to extend them further.
Courts must remain mindful of the real jurisdictional
limitations on our reviewing role under the NLRA. See, e.g., Low
Kit Min. Co., 3 F.3d at 729-30. We have been careful to respect
the Board’s management of representation proceedings where
warranted. See e.g., Perdue Farms, Inc. v. NLRB, 108 F.3d 519,
521 (4th Cir. 1997). Here, however, we consider the impact of
the APA on the NLRA jurisdictional provisions in a case where an
election has been held and the Board’s finding underpinning a
second-election order has been overturned. Our duty is to deny
enforcement to those remedial directives that are “arbitrary,
capricious,” or contrary to law, 5 U.S.C. § 706, and that are
indistinguishably part of Board final orders concededly ripe for
45
review, 29 U.S.C. § 160(f). I therefore turn to the question of
whether the Board’s second-election order here was arbitrary and
capricious.
III.
Ordering a new election after the first contest’s landslide
results, and on account of comparatively minor company
violations, overstepped the Board’s remedial discretion. First,
more carefully tailored remedies could adequately address any
illegitimate conduct without forcing a second election unlikely
to yield a different result. Second, the Board’s order both
departs from Board precedent focusing on whether a given error
actually affected an election’s outcome and relies on a harmless
error rule that, when applied as it was here, is far out of
proportion to the harm it protects against.
A.
Intertape’s employees voted 142-97 against the union, a
margin of 45 votes, or almost 19%. By way of comparison, no
presidential candidate has won a more lopsided share of the
popular vote since Nixon defeated McGovern in 1972. See Leip,
David, United States Presidential Election Results, David Leip’s
Atlas of U.S. Presidential Elections,
www.uselectionatlas.org/RESULTS/ (last visited Aug. 24, 2015).
Surely marginal company infractions should not undermine this
election result.
46
Here, we hear only three minor complaints. First, an
Intertape supervisor allegedly approached a single employee and
asked about his union sentiments. But this “interrogation”
occurred before the critical period, and the Board rightly did
not rely on it when ordering a new election. J.A. 680. Next,
Intertape expedited “the cleanup of a break room that, at most,
involved the removal of certain material for several hours on 2
days approximately 1 month before the election.” J.A. 682;
Intertape Polymer Corp., 360 NLRB No. 114, at *3 (Member
Miscimarra, dissenting). Finally, Intertape conducted a
leafletting campaign simultaneous with a similar union campaign.
The Board found that this parallel leafletting constituted
unlawful surveillance of union activity. J.A. 679-80.
This last charge –- that Intertape unlawfully surveilled
its employees while leafletting -– is particularly problematic
because, as the court notes, it gives short shrift to
Intertape’s own free speech rights. Intertape’s right to express
its views on union membership to its employees is protected by
the First Amendment. Chamber of Commerce v. Brown, 554 U.S. 60,
67 (2008); see also Allentown Mack Sales & Serv., Inc. v. NLRB,
522 U.S. 359, 386 (1998) (Rehnquist, C.J., concurring and
dissenting) (”An employer’s free speech right to communicate
[its] views to [its] employees is firmly established and cannot
be infringed by a union or the Board.”). The Board found
47
unlawful surveillance because Intertape supervisors do not
typically communicate with employees by leafletting at the plant
gate; that they did so was “out of the ordinary.” J.A. 679. But
elections are themselves “out of the ordinary” –- that Intertape
does not resort to leafletting for day-to-day personnel
communications cannot be used as a reason to muzzle the exercise
of free speech when campaign season arrives.
To hold broadly that simultaneous leafletting involves
unfair supervisory surveillance of employees overlooks the fact
that elections of all sorts involve simultaneous communication
of competing points of view. It also confers upon a union a veto
power over employer speech at prime times and on critical days.
Chief Judge Traxler has put the point well: “by accepting [the
General Counsel’s] argument, the Board is effectively requiring
employers to cease engaging in protected conduct whenever union
supporters choose to engage in identical, protected conduct
alongside them.” Maj. Op. at 31.
In any event, these alleged infractions could not have
forced the hands of 45 adult employees, the large margin by
which the union lost. I agree fully with the Board that the
employer had no right here to expedite its so-called “clean up”
and remove the union materials from the breakroom. But dozens of
thinking employees did not vote differently because of a
premature cleanup of a breakroom weeks before the election. Nor
48
did the risk of accepting a leaflet within view of a supervisor
plausibly scare so many workers from expressing their true
beliefs via secret ballot. The NLRA “does not require the Board
to treat employees as if they were bacteria on a petri dish that
must be kept free of contamination.” NLRB v. Lovejoy Indus.,
Inc., 904 F.2d 397, 402 (7th Cir. 1990). The Board’s ultra-
sanitized approach gives too little weight to the jockeying
inherent in any election and too little credit to employees’
capacity for independent thought.
Requiring a new election, moreover, may impose real costs
on employer and employee alike. A second election distracts both
from their work, may risk damage to joint morale, and absorbs
considerable time and resources. And the results of any do-over
election would quite possibly be contested and litigated as
well. Where does it all end? There are of course instances where
the employer will abuse its very position as employer and render
elections something other than the product of free choice. There
will of course be situations where the result of an election
will be fatally compromised by unfair labor practices, but this
was not one of those, and the Board’s remedial order revealed an
insensitivity to the burdens that agency actions can impose upon
those companies who possess but limited recourse to check
official overreach.
49
None of this is to say that properly proven infractions
should be left uncorrected. But the power to remedy comes with
the responsibility to issue an appropriate remedy. The Supreme
Court has instructed federal courts, for example, that a “grant
of jurisdiction to issue compliance orders hardly suggests an
absolute duty to do so under any and all circumstances.” Tenn.
Valley Auth. v. Hill, 437 U.S. 153, 193 (1978) (quoting Hecht
Co. v. Bowles, 321 U.S. 321, 329 (1944)). Accordingly, it has
rejected mechanical rules mandating injunctive relief. See,
e.g., eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 393-94
(2006) (rejecting the Federal Circuit’s general rule requiring a
permanent injunction against a patent infringer upon a finding
of infringement absent exceptional circumstances). It has
instead espoused the commonsense notion that “the nature of the
violation determines the scope of the remedy.” Swann v.
Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971). When it
has recognized possible liability, the Court has been careful to
instruct that “[r]emedial orders . . . should concentrate on the
elimination of the offending practice.” Tex. Dept. of Hous. &
Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct.
2507, 2524 (2015).
If federal courts can leaven their remedial powers with a
dose of proportionality, administrative agencies can too. It
does not take agency expertise to determine that landslide
50
election results are not altered by insubstantial infractions.
Here, the Board could have pursued a more proportionally
tailored remedy by, for example, finding the employer at fault
and requiring it both to cease and desist from its unfair labor
practices and to post the Board’s cease and desist order in
“conspicuous places.” See, e.g., Flamingo Las Vegas Operating
Co., 360 NLRB No. 41, 2014 WL 559058, at *6-7 (Feb. 12, 2014)
(finding a cease and desist order to be an adequate remedy and
declining to order a new election). Here, such an order would
draw attention to the misconduct without the unnecessary
dislocations of another election.
B.
The Board’s direction of a new election was also
inconsistent with its own past practice. Previous Board
decisions have inquired more thoroughly into whether any
misconduct actually affected the election’s outcome. Some do
follow the stringent harmless error rule of Super Thrift
Markets, Inc., which requires a new election unless it is
“virtually impossible to conclude that [misconduct] could have
affected the results.” 233 N.L.R.B. 409, 409 (1977). See, e.g., Long
Drug Stores Cal., Inc., 347 NLRB No. 45, 2006 WL 1810612, at *5
(Jan. 28, 2006) (holding it “virtually impossible” for isolated
misconduct to have affected a “wide margin” of votes).
51
Other cases, however, apply a more searching multi-factor
inquiry, considering among other things the “proximity of the
misconduct to the election” and the “closeness of the final
vote.” Fjc Sec. Servs., Inc., 360 NLRB No. 6, 2013 WL 5703601,
at *9 (Oct. 18, 2013) (citing Taylor Wharton Div., 336 N.L.R.B. 157,
158 (2001)). No matter which standard it invokes, however, in
many of its past cases the Board has determined that it will not
order a new election where misconduct does not materially affect
election results. In Clark Equipment Co., for example, the Board
found that an employer’s misconduct could not have “affected the
results of the election,” because with a tally of 391 for, and
489 against the union (a result less lopsided in percentage
terms than that in this case) the election “[could not] be
characterized as close.” 278 N.L.R.B. 498, 505 (1986).
The Board did not invoke any particular standard when it
ordered a new election here, asserting only that the infractions
at issue “cannot be trivialized as isolated or de minimis.” J.A.
680. This terse analysis, however, resembles a strict
application of the “virtually impossible” standard –- one that
departs from past cases’ more realistic examination of whether
any misconduct had a likely effect on election results.
A stringent “virtually impossible” standard could well be
the most exacting harmless error rule in all of American law.
Compare the Board’s rule with some other well-known rules. A
52
person may go to prison for life, for example, after a violation
of his federal rights so long as a court can say “with fair
assurance” that “the judgment was not substantially swayed by
the error.” Kotteakos v. United States, 328 U.S. 750, 765
(1946). An individual may receive that same sentence even after
a violation of his constitutional rights so long as a court is
“able to declare a belief that [the violation] was harmless
beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18,
24 (1967). That the Board’s intolerance of marginal NLRA
infractions is greater than that of courts for error in criminal
trials is unsettling.
Ordering a new election is likely to be arbitrary and
capricious whenever the underlying infraction did not materially
affect the first election’s results. What could be more
capricious, after all, than an order to redo a costly process
without good reason to believe that the result will be any
different the second time around? This commonsense notion may
explain why many courts, including this one, have often referred
to a standard of materiality when overruling objections to
Board-certified elections. See, e.g., NLRB v. Herbert Halperin
Distrib. Corp., 826 F.2d 287, 290 (4th Cir. 1987) (holding that
an employer seeking to set aside an election bears the “heavy
burden” of showing that infractions “materially affected the
election results”); Bridgeport Fittings, Inc. v. NLRB, 877 F.2d
53
180, 188 (2d Cir. 1989) (holding that “the Board did not abuse
its discretion in failing to set aside [the union’s victory in
an] election” because “the failure . . . did not affect the
outcome of the election”). It is unclear why the Board should
not also use a standard of materiality and certify an election
which was fundamentally fair, even if not impeccably perfect.
This is a neutral standard; neither an employer’s nor a union’s
marginal infractions under the NLRA should be grounds for
overturning an election if the election proceedings in their
totality were fair.
IV.
The Board is “vested with a wide degree of discretion in
establishing the procedure and safeguards necessary to insure
the fair and free choice of bargaining representatives by
employees.” NLRB v. Ky. Tenn. Clay Co., 295 F.3d 436, 441 (4th
Cir. 2002). But courts must not “rubber stamp” Board decisions –
- they can and must step in when the Board goes “beyond what
good sense permits.” Comcast Cablevision-Taylor v. NLRB, 232
F.3d 490, 495 (6th Cir. 2000). In this case, the Board’s action
ran counter to a prime objective of our labor law -- that of
supporting employee democracy. The Board’s decision to order a
new election on the basis of minor violations at worst, and
under a shifting and unreasonably stringent harmless error rule,
failed to honor the fact that the employees in this company made
54
a clear choice as to union representation. One would have
thought the verdict of these workers might have been respected.
I end where I began. I join the court’s opinion. The
precedent of our circuit does not allow a Board re-run election
order to be judicially reviewed at this juncture. It is, of
course, much to be hoped that the Chief Judge’s conscientious
review of the Board’s underlying unfair-labor-practice findings
will cause the Board to withdraw its election re-run order on
its own, but, in the absence of a court direction, that is by no
means assured. Still, the workers’ vote should matter; the
employer should not have to undergo an election do-over; the
court should not have to await some speculative alleged refusal
to bargain under Section 8(a)(5), having in the interim engaged
in but piecemeal review and performed what in essence would be a
pointless exercise.
What we have before us is a snapshot of an area in which
the balance between courts and agencies is simply out of whack.
None of this means the Board’s role in labor relations is to be
devalued or its findings paid less deference, for indeed, its
interrogation and confiscation findings in this very appeal were
and should have been upheld. But administrative overreach was
also on display here. If not in this case, then in some other,
Supreme Court evaluation of the timing and extent of court of
appeals review of Board second-election orders might be a
55
helpful thing. Helpful, I think, if the benefits and burdens of
the administrative state are finally to be reconciled.
56